Within the Scope

Blogging on Administrative Law and the Public Sector

Friday, January 22, 2010

Not Just Narrowly Tailored, But Gently Tailored As Well

While one could no doubt run an entire constitutional law seminar on the features that are found in yesterday’s 183-page opinion, Citizens United v. Federal Elections Commission, I was drawn to one part in particular – the majority’s contention that bureaucratic red tape can stifle political speech just as much as the censor’s blue pencil.

So, while most commentators were expressing concern over the rivers of corporate money that may cascade around political campaigns in the years ahead, I was thinking about how the decision could impact the remainder of the regulatory landscape. It seemed to me that provisions of the Bi-Partisan Campaign Reform Act may not be the only regulations that fall under the standards announced yesterday.

Try this thought experiment: Take your favorite campaign finance requirement and consider the remarks of Associate Justice Anthony Kennedy:

The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.” The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation....


As additional rules are created for regulating political speech, any speech arguably within their reach is chilled. Campaign finance regulations now impose “unique and complex rules” on “71 distinct entities.” These entities are subject to separate rules for 33 different types of political speech. The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975. In fact, after this Court in [Wisconsin Right to Life v. FEC] adopted an objective “appeal to vote” test for determining whether a communication was the functional equivalent of express advocacy, the FEC adopted a two-part, 11-factor balancing test to implement WRTL’s ruling.

This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.

Now, not only will government regulations of political activity need to be narrowly tailored and further a compelling state interest, it appears that they will also need to be gently tailored for a comfortable fit.